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Judgment
M. Venugopal, J.—The Petitioner has filed the present writ of certiorarified mandamus in calling for the records of the second Respondent/Labour Court, Tirunelveli in regard to the award passed in I.D. No. 2 of 2006 dated 7/12/2007 and to quash the same.
According to the Learned Counsel for the Petitioner/Respondent, the Petitioner Company has been awarded a contract to construct a Masonry dam at Advinainarkoil at Mekkarai, Shencottah Taluk, Tirunelveli District by the Government of Tamil Nadu. The period of contract is for four years (inclusive of the extended period). The contract is for a limited period from 1/4/1998 to 31/3/2002.
The Learned Counsel for the Petitioner/Respondent urges before this Court that the First Respondent/Petitioner has been appointed in the Petitioner''s Company on probation basis as per appointment order dated 1/10/1999 on a consolidated salary of Rs. 2,418/-. Further, it is mentioned in the appointment order itself that his services will get discontinued after completion of the contract. The first Respondent has submitted his nomination declaration as regards the Employees Provident Fund which has been duly counter signed by the Petitioner Company. He also submitted Form No. 5 pertaining to the Employees Provident Fund. His services have been terminated on 11/5/2000. As a matter of fact, the project has been in operation only for a contractual period of four years.
The Learned Counsel for the Petitioner, advancing his arguments contends that the first Respondent filed I.D. No. 2 of 2006 on the file of the second Respondent/Labour Court and notices have been addressed to the erstwhile site Office of the Petitioner at Kuttralam, so as to obtain ex parte award against the Petitioner/Company and the first Respondent obtained an ex parte award on 8/5/2008 before the second Respondent/Labour Court, Tirunelveli.
Also, the Learned Counsel proceeds to submit that the award has been posted to the Petitioner Company to their Courtallam Office address on 29/4/2008 by the Labour Officer, Tirunelveli, etc., and the said award has been sent to Mumbai Office of the Petitioner''s Company, after getting re-routed from Courtallam address and the same has been received by the Petitioner Company at Mumbai on 28/5/2008.
The Learned Counsel for the Petitioner Company submits that the second Respondent Office, Tirunelveli has not posted the postal article from Tirunelveli, but the same has been done by the first Respondent by posting it from Tenkasi and thus, award has been obtained behind the back of the Petitioner Company and therefore, the same is void and an illegal one.
The Learned Counsel for the Petitioner/Company/Management submits that the Petitioner Company has been engaged only in contract work and therefore, there is no permanency in the work and hence, the first Respondent/Petitioner cannot claim for his reinstatement with back wages since the contract period has been less than two years.
The plea of the Learned Counsel for the Petitioner/Management is that the failure report of the labour Officer, Tirunelveli is dated 12/2/2001 and the reference to the Labour Court is of the year 2006, after a lapse of five years and by that time, the contract has come to an end after two years and in fact, Kuttralam Office of the Petitioner has been wound up.
The Learned Counsel for the Petitioner takes a stand that the first Respondent/Employee is aware of his temporary employment in a contractual project and as such, he is aware of the address of the Petitioner Company all through the period of employment and he is also aware that there is no Project Officer at Kuttralam after completion of the earth work involved in the project in which the driving machineries have been used by the first Respondent.
The Learned Counsel for the Petitioner/Management, expatiating his submissions submits that the First Respondent/Employee has attempted to assault the Superior Officer with chappals and using filthy language and there has been complaints given in writing by the superiors of the first Respondent/Employee.
Also, the First Respondent''s Superior has lodged a Police complaint before Achanpudur Police Station against the First Respondent/Employee. The First Respondent/Employee has given a letter of apology to correct himself. But, he has not corrected himself during the second probationary period.
Lastly, it is the contention of the Learned Counsel for the Petitioner/Management that the Petitioner Company has no other alternative remedy to assail the award dated 17/12/2007 passed in I.D. No. 2 of 2006 by the second Respondent/Labour Court, Tirunelveli and therefore, the writ petition is maintainable before this Court.
Per contra, it is the contention of the learned Counsel for the First Respondent/Employee that the First Respondent has been terminated from service by means of an order of the Petitioner dated 11/5/2000 and that the Petitioner Company has not conducted any enquiry in respect of the Petitioner and also no show cause notice has been given to the Petitioner either in regard to his purported misbehaviour with Ravi, Assistant Plan Engineer on 10/5/2000 at night or in regard to threatening to beat him with chappals, etc. Further, the Labour Officer, Tirunelveli has addressed a letter dated 17/8/2000 to the Petitioner Company stating that there will be a meeting in the Office on 24/8/2000 in the afternoon session at 3.00 p.m., and before that, the first Respondent has submitted an application before the Labour Officer, Tirunelveli as per Section 2A claiming reinstatement. On 6/11/2000, the Deputy General Manager of the Petitioner Company has addressed a letter to the Labour Officer, Tirunelveli and authorising one Mr. E.R. Nair to attend and deal with the hearing in Reference No. 1127/2000 on their behalf. Later, the Labour Officer, Tirunelveli, has submitted the failure report on 12/2/2001 to the Government in Ref. No. 1127/2000.
The Learned Counsel for the First Respondent/Employee submits that it is upto the Government to refer the matter to the Labour Court/competent forum and when the First Respondent/Petitioner raised a dispute claiming reinstatement/re-employment at that point of time the Office of the Petitioner Company has been very much in existence and it participated in hearing before the Labour Officer, Tirunelveli. There is no averment in the counter filed by the Petitioner Company before the Labour Officer that when the project has been closed and that the Petitioner/Management received the copy of the Ex parte Award at Mumbai address to which it has been redirected and the second Respondent/Labour Court has exercised its due diligence. Moreover, the Petitioner Company has not pursued the case and the scope of judicial review is very limited in a jurisdiction under Article 226 of the Constitution of India.
The second Respondent/Labour Court, Tirunelveli on 17/12/2007 in I.D. No. 2 of 2006 has passed the following award, which runs as follows: "Petitioner was examined as W.W.1 on 22/11/2007 besides proof affidavit having been filed and Ex.W.1 and W.2 have been marked on the side of the Petitioner. But Respondent was called absent and set ex parte on 22/11/2007 and till this day Respondent has not come forward with any application to set aside ex parte order dated 22/11/2007. Hence Petitioner is entitled to the relief as prayed for and accordingly award is passed directing the Respondent to reinstate Petitioner in service and also pay the backwages."
As seen from the award, it is mentioned that the Petitioner/Management (Respondent in I.D. No. 2 of 2006) has been called absent and set Ex parte on 22/11/2007. Further, till the passing of the award on 17/11/2007, the Petitioner/Management has not filed any application to set aside the Ex parte order. Therefore, the second Respondent/Labour Court has examined the first Respondent has W.W.1 on 22/11/2007 (besides the proof affidavit being filed) and also marked W.1 and W.2 on his side. The second Respondent has passed an award holding that the First Respondent/Petitioner is entitled to the relief as prayed for in I.D. No. 2 of 2006 and directed the Petitioner/Management to reinstate the First Respondent/Employee and to pay him the back wages.
The learned Counsel for the Petitioner/Management submits that if the Government has not made the reference to the competent forum within a reasonable time and if sufficient cause is not shown in that regard, the same is fatal. To lend support to his contention, he relies on the decision of Honourable Supreme Court in Kuldeep Singh v. G.M. Instrument Design D & F Center and Anr. reported in 2011 (1) LLN 1 (SC) wherein it has among other things held that
Government cannot go into merits of dispute and once it is found that there is dispute, Government ought to make a reference and further and if adequate reasons are found, the Government has to refer the dispute and must not decline on ground of laches and also that though there is no limitation prescribed, but the reference has to be sought within a reasonable time and sufficient cause is not shown, it would become fatal.
He cites a Division Bench decision of this Court in Ammani Ammal v. Dhanalakshmi Bank Ltd., Tiruppur and Ors. reported in (2008) 2 MLJ 395, wherein, it among other things held that
There is a duty cast on the bank to state the correct address of the borrowers and the guarantor and the Court or Tribunal while making an order to hear the suit ex parte, should be convinced that the summons was duly served on the Defendant. Further, unless and until it is shown that the Defendant was served in the correct address, it cannot be said in spite of the notice, the Defendant failed to appear before the Court, etc.
Continuing further, in the aforesaid decision, at page No. 396, it is held that
The Court or Tribunal cannot mechanically declare a party ex parte without making an attempt to see whether the summons was really served and in the present case, no such attempt has been made by the Tribunal and it also failed to note that the correct address of the Petitioner was not given in the original application and that there is no exorbitant delay in filing the application to set aside the exparte order and accordingly, the delay has been condoned.
He invites the attention of this Court to the decision of the Honourable Supreme Court in M.D., U.P. Land Dev. Corpn. and Another Vs. Amar Singh and Others, wherein the Honourable Supreme Court has held as follows:
The internal note and order of the Corporation was prepared by the Director of the Corporation for his own purpose, but strangely enough a copy of the same was produced by the Respondents in the writ petition. Apart from the fact whether such an internal note itself could give any right to the Respondents, the very reading of the same does not give an impression that it is indicated to create twenty-five posts on a regular basis. It only states that a panel of twenty-five persons be prepared for training, taking note of the future possible requirements of persons working in the project. From the documents viz., the internal note and order of the Corporation, letter addressed to the Vice Chancellor of Agricultural University seeking names of the candidates for recruitment to the post of Assistant Project Manager (Group 3), letters addressed to the Respondents individually asking them to attend the office for training, during which they were to get a monthly training allowance for Rs. 1200 only and the letter of the Joint Secretary, U.P. Govt., stating the vacancy position, it is clear that the Respondents were never recruited as against regularly sanctioned posts on a regular basis. Reading of these documents and the contentions raised on either side go to show that the appointments of the Respondents were temporary under the "Million Wells Scheme". When the work of the Scheme come to an end, the Respondents were not entitled to claim regularisation of their services. When the project comes to a close, the employees who are working in the project will not get any vested right. In other words, once the project comes to an end, services of the employees also come to an end. Even though their services were continued by virtue of an interim order passed in the writ petition, they cannot claim benefits of regularisation of their services as a matter of right.
He cites the decision of the Honourable Supreme Court in Mahindra and Mahindra, Ltd. v. N.B. Narawade reported in 2005 (1) L.L.N. 1074, wherein it is observed that
...Discretion u/s 11A of the Industrial Disputes Act can be exercised only on existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the Court or the existence of any mitigating circumstances which require the reduction of the sentence or the past conduct of the workman which may persuade the Labour Court to reduce the punishment and further, the use of abusive and filthy language against the supervisor not once but twice that too in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment. In the absence of any extenuating factor and therefore, the Labour Court as well as the High Court erred in interfering with the punishment imposed by the disciplinary authority.
The learned Counsel for the Petitioner places reliance on the decision of this Court in The Chairman and Managing Director, Tamil Nadu Minerals Ltd., Chennai 5 Vs. The Presiding Officer, Industrial Tribunal, Chennai 104 and two others, , wherein it is held that
The award passed without considering the merits and demerits of the claim and the order passed by the Industrial Tribunal is a non-speaking order without considering the merits and demerits of the claim and that there is absence of judicial application of mind and the said order of the Industrial Tribunal is not a judicious one.
Apart from the above, the learned Counsel for the Petitioner/Management draws the attention of this Court to the following decisions.
(a). This Court in the order made in W.P. Nos. 831 to 833 of 2008 in The Management of Stallion Garments v. The Presiding Officer, Labour Court, Salem and three Ors., wherein reference was made to Section 24 which deals with the power of the Board, Courts, Labour Courts, Tribunals and National Tribunals, which runs as follows:
Likewise, the Tamil Nadu Industrial Disputes Rules, 1958, particularly Rule 34 which speaks about the proceedings before the Labour Court or Tribunal enables the Labour Court to decide a reference in the absence of a defaulting party as ex parte, however, with the right to revoke the said ex parte proceedings on the application of the party within 15 days from the ex parte proceedings, if satisfied with the reasons preventing the party from appearing. It also confers the power on the Labour Court in the case of the applicant satisfying that he has sufficient cause for not preferring the application even beyond 15 days. The said provisions are as follows: 34. Proceeding before the Labour Court or Tribunal:
(1) to (9) xxxxx
(10) In case, any party defaults or fails to appear at any stage, the Labour Court or Tribunal as the case may be, may proceed ex-parte and decide the reference application in the absence of the defaulting party.
(11) Notwithstanding anything contained in Sub-rule (10), the Labour Court or the Tribunal, as the case may be, may, before submitting the award to the State Government, revoke the ex-parte proceedings on the application of the party made within 15 days of the ex-parte proceedings if it is satisfied that the party has been prevented from attending the proceedings for valid reasons: Provided that an application may be admitted after the said period of 15 days, if the applicant satisfies the Labour Court or Tribunal, as the case may be, that he had sufficient cause for not preferring the application within that period. Therefore, under the Tamil Nadu Industrial Disputes Rules, 1958 there is an enabling provision to the Labour Court or Industrial Tribunal to entertain the application filed to set aside the award even beyond 15 days without any further restriction to the party when sufficient cause has been shown to the satisfaction of the Court.
It is true that while the ex parte award was passed by the Labour Court and the petitions to set aside the ex parte award with the petitions to condone the delay were dismissed in 2007, the judgment of the Supreme Court at that time dealing with the powers of the Labour Court in setting aside the ex parte award after 30 days from the date of publication was as held in Sangham Tape Company v. Hans Raj 2004 (5) CTC 104 (SC). That was also a case where after the expiry of 30 days from the date of publication of the ex parte award, the application filed to set aside the ex parte award came to be allowed and when a similar contention was raised that after the lapse of 30 days from the date of publication, the Labour Court has no jurisdiction, the High Court set aside the award of the Labour Court which was challenged by the employer.
In that case, the Supreme Court considered the judgment in Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, wherein it was held that by virtue of the provisions of Section 11 of the Industrial Disputes Act, 1947 and Rules 22 to 24 of the Industrial Disputes (Central) Rules, 1957 if within 30 days from the date of publication of award any application is filed to set aside the award, the same can be entertained and therefore, it was only till 30 days from the date of publication of the award, the Tribunal retains its jurisdiction, and having held that the judgment of the Supreme Court in Anil Sood Vs. Presiding Officer, Labour Court II, did not lay down any law contrary to the judgment in Grindlays Bank case (cited supra), the Supreme Court held as follows: 12. This Court in Anil Sood (supra) did not lay down any law to the contrary. The contention raised on the part of Mr. Jain to the effect that in fact in that case an application for setting aside an award was made long after 30 days cannot be accepted for more than one reason. Firstly, a fact situation obtaining in one case cannot be said to be a precedent for another. [See Mehboob Dawood Shaikh Vs. State of Maharashtra, . Secondly, from a perusal of the said decision, it does not appear that any date of publication of the award was mentioned therein so as to establish that even on fact, the application was made 30 days after the expiry of publication of the award. Furthermore, the said decision appears to have been rendered on concession.
It was based on the said dictum laid down by the Supreme Court which was holding the field at that time, the Labour Court rejected the application filed by the Petitioner beyond 30 days from the date of publication of the award on the ground that the Labour Court became functus officio. But, as brought to the notice of this Court by the learned Counsel for the Petitioner, the Supreme Court had an occasion to consider the said issue recently in Radhakrishna Mani Tripathi v. L.H. Patel and Anr. 2009(1) LLN 786 wherein the judgment in Sangham Tape Company Vs. Hans Raj, was not considered, but, at the same time considered in detail the judgments in Grindlays Bank and Anil Sood (cited supra) in the light of the Industrial Disputes (Bombay) Rules, 1956. Rule 26 of the Industrial Disputes (Bombay) Rules is slightly different from the relevant provision in the Tamil Nadu Rules in the sense that it enables a party affected by an ex parte award to file application within 30 days of the receipt of copy of the said award. The said rule is as follows: 26. Board, Court, Labour Court, Tribunal or Arbitrator may proceed ex parte.-If without sufficient cause being shown, any party to a proceeding before a Board, Court, Labour Court, Tribunal or an arbitrator fails to attend or to be represented, the Board, Court, Labour court, Tribunal or arbitrator may proceed ex parte. (2) Where any award, order or decision is made ex parte under Sub-rule (1), the aggrieved party, may within thirty days of the receipt of a copy thereof, make an application to the Board, Court, Labour Court, Tribunal or Arbitrator as the case may be, to set aside such award, order or decision. If the Board, Court, Labour Court, Tribunal or Arbitrator is satisfied that there was sufficient cause for non-appearance of the aggrieved party, it or he may set aside the award, order or decision so made and shall appoint a date for proceeding with the matter: Provided that, no award, order or decision shall be set aside on any application as aforesaid unless notice thereof has been served on the opposite party.
Also, in the said decision, the learned Counsel for the Petitioner, refers to the observations made in paragraph 17, 18 and 20, which runs as follows:
Applying the latest dictum of the Supreme Court wherein the Honble Supreme Court has taken note of Rule 22 of the Central Rules which is similar to Rule 26(1) of the Bombay Rules, to the facts of the present case, as elicited above, Rule 34(10) and (11) of the Tamil Nadu Industrial Disputes Rules, 1958, especially the proviso to Rule 34(11) which enables an applicant to set aside the ex parte award even after 30 days of publication, since no maximum period of limitation is mentioned even after the period of 15 days, and the same is relatable to Rule 22 of the Central Rules and Rule 26(1) of the Bombay Rules as stated above.
In fact, by referring to the said Rule 22 of the Central Rules, this Court in Chairman and Managing Director, Tamil Nadu Minerals Ltd., Chennai v. Presiding Officer, Industrial Tribunal, Chennai and Ors. 2000(3) LLN 1025 was dealing with an application to set aside ex parte award which was filed after a delay of 1245 days. In that case, P. Sathasivam, J.(as he then was) by relying upon the judgment of this Court in Tamil Nadu Housing Board, Madras Vs. The Presiding Officer, II Additional Labour Court, Madras and Another, held that when the ex parte award was passed, the Labour Court did not choose to give any reason and even the facts of the case were not mentioned and the award was passed in a casual manner without application of mind. It was also held as under: 7. It is also relevant to refer a Division Bench decision of this Court in Tamil Nadu Housing Board, Madras Vs. The Presiding Officer, II Additional Labour Court, Madras and Another, . Their Lordships of the Division Bench after considering similar Rule 48 of the Tamil Nadu Industrial Disputes Rules, 1958, as well as an ex parte award passed by the Labour Court, have observed thus: 6. Thus, from the aforesaid award, it is clear that the Labour Court has not considered the evidence on record. Even though the Appellant remained absent, nevertheless, there was evidence on record. There were the statements of the case pleaded by the Petitioner and the Respondent. The Labour Court was required to consider and give reasons for passing the award in favour of the second Respondent-workmen. As no such reason is given, not even the facts of the case are stated, the award cannot at all be considered to be a speaking order, as such it cannot be sustained. The Presiding Officer is an officer of the district Judge grade. He should not have decided the dispute in such a manner. There is no judicial application of mind of the Presiding Officer of the Labour Court. Such exercise of jurisdiction causes great and incalculable damage to the parties and also to the administration of justice. The Presiding Officer would do better, if he discontinues such a habit of disposal of cases. In the case before the Division Bench, when the dispute was taken up for enquiry, the Respondent-management was absent and set exparte. On the side of the workmen, W.W.1 was examined and Exhibits W.1 to W.4 were marked. The Labour Court after stating that W.W.1 was examined, that Exhibits W.1 to W.4 were marked, and that claim is proved, passed an award directing the Respondents-management to reinstate the workman in service with back-wages, continuity of service and other attendant benefits with cost of Rs. 100. The aid award was set aside by the Division Bench stating that the Labour Court has not assigned any reason and has not stated even the facts of the case. It is clear that in a matter like this, even if the Respondent was absent, it is the duty of the Labour Court/Industrial Tribunal to consider and give reason for passing the award. Inasmuch as the Presiding Officer is an officer of the District Judge grade, as observed by their Lordships in the Division Bench, he should not have decided the dispute in such a manner. There must be a judicial application of mind and his order must be based on acceptable materials. By applying the ratio laid down in the Division Bench decision, the impugned order cannot be sustained. In W.P. No. 6346 of 1998, dated 14 August, 2000, I had an occasion to consider similar ex parte award passed by First Additional Labour Court, Chennai, in I.D. No. 120 of 1995. In the light of the Division Bench decision referred to above, I set aside the ex parte award with a direction to pay cost to the workman concerned by the management and directed the Labour Court to decide the dispute on merits. The decision of mine also supports the contention of the learned Counsel for the Petitioner.
In such view of the matter, considering the view of the Supreme Court in its latest judgment in Radhakrishna Mani Tripathi v. L.H. Patel and Anr. 2009(I) LLJ 786 and for the reasons stated above, I am of the considered view that it cannot be said that the Labour Court has become functus officio after the publication of the award u/s 17A of the Act. It is also relevant to note that the ex parte award passed by the Labour Court itself is, on the face of it, without application of mind and even the facts of the case have not been narrated by the Labour Court while passing the ex parte award which can certainly be said to be an award passed in a casual manner, as observed by this Court as elicited above. While the powers of CPC are conferred on the Labour Court in respect of procedure to be followed in passing the award, certainly in case where ex parte award is sought to be passed, there should be proper application of mind and the presiding officer should be fair at least in narrating the facts of the case, especially in the circumstance where he allowed the claim against the termination, as pleaded by the second Respondent-workmen.
(b). In Radhakrishna Mani Tripathi Vs. L.H. Patel and Another, , wherein the Honourable Supreme Court has held that
The Tribunal held that the Appellant obtained an order for ex parte hearing of the reference by knowingly suppressing the correct address of Respondent No. 1 and the labour Court recalled its earlier award and in the appeal, it is held that the order of the labour Court recalling the ex parte award was completely in accordance with Rule 26(2) of the Bombay Rules and also, the Respondent No. 1 was also able to fully satisfy the Labour Court that there was sufficient cause for his non-appearance since no notice was ever served on him and there is no conflict between Rule 26(2) of the Maharashtara Rules and Section 17A of the Act and resultantly, dismissed the appeal.
(c). In L.K. Verma Vs. H.M.T. Ltd. and Another, , wherein the Honourable Supreme Court has observed that
Despite the existence of an alternative remedy, a writ Court may exercise its discretionary jurisdiction of judicial review in the following cases: where the Court or the tribunal lacks inherent jurisdiction; or for enforcement of a fundamental right; or if there had been a violation of a principle of natural justice; or where vires of the act were in question and in the present case, the alternative remedy had been held not to operate as a bar.
(d). In Kedarisetti Atmaram v. N. Seetharamaraju reported in AIR 2011 (NOC) 65 (A.P.) wherein it is held as follows:
Irrespective of the fact whether the Petitioner had availed the alternative remedy or not or whether the Petitioner had exhausted the other remedies or not, but where it appears that manifest injustice has been done, High Court shall have superintendence over all the subordinate Courts and Tribunals through the territory in relation to which it exercises its jurisdiction and when prejudice is caused to the general provisions, the High Court may call for written explanation from such Courts and make and issue general rules and prescribe norms for regulating the practice and proceedings of such Courts. Thus the power of superintendence over subordinate Courts and tribunals are exhaustive and cannot be curtailed even by any legislation.
Where it appears that manifest injustice has been done, the High Court can interfere under Article 227 of the Constitution. Therefore, where it appears to the Court that a decree has been obtained by misrepresentation or by playing fraud, the Court can exercise its powers under Article 227 and entertain a revision and set aside such judgement and decree and see that illegal, unjust and irregular orders do not prevail. It is the duty of the Court to see that fraud played by the parties should not perpetuate and as and when it comes to the notice of any Court at any stage, the Court has to set aside the same in the interest of justice.
However, the learned Counsel for the Respondent/Employee cites the decision of the Honourable Supreme Court in Sangham Tape Company Vs. Hans Raj, wherein it is held as follows:
An industrial adjudication is governed by the provisions of the Industrial Disputes Act, 1947 and the Rules framed thereunder. The Rules framed under the Act may provide for applicability of the provisions of the Code of Civil Procedure. Once the provisions of Order 9 Rule 13 thereof would be attracted. But unlike an ordinary civil court, the Industrial Tribunals and the Labour Courts have limited jurisdiction in that behalf. While an Industrial Court will have jurisdiction to set aside an ex parte award, but having regard to the provision contained in Section 17A of the Act, an application therefor must be filed before the expiry of 30 days from the publication thereof. Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication, and only up to that date it has the power to entertain an application in connection with such dispute. This is because an award made by an Industrial Court becomes enforceable u/s 17A of the Act on the expiry of 30 days from the date of its publication. Once the award becomes enforceable, the Industrial Tribunal and/or Labour Court becomes functus officio.
At this stage, this Court points out the decision of the Honourable Supreme Court in Anil Sood Vs. Presiding Officer, Labour Court II, wherein it is held as follows:
The aspect that the party against whom award is to be made has to be given due opportunity to defend is a matter of procedure and not that of power in the sense in which the language is adopted in Section 11. When matters are referred to the tribunal or court they have to be decided objectively and the tribunals/courts have to exercise their discretion in a judicial manner without arbitrariness by following the general principles of law and rules of natural justice.
The power to proceed ex parte is available under Rule 22 of the Central Rules which also includes the power to inquire whether or not there was sufficient cause for the absence of a party at the hearing and if there is sufficient cause shown which prevented a party from appearing, then if the party is visited with an award without a notice, that is a nullity and therefore, the Tribunal will have no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex parte award.
Also in Nice Rubber Vs. The Presiding Officer and Others, where at paragraph Nos. 4 and 5, it is observed as follows:
The question raised in this petition is no longer res-Integra in as much as the Supreme Court in a case reported as Anil Sood v. Presiding Officer, Labour Court JT 2001 (I) LLJ 113 has held that Section 11 of the Industrial Disputes Act conferred ample powers upon the Tribunal to devise its own procedure in the interest of justice which includes power which bring out the adjudication of an existing industrial dispute. Sub-section (1) and (3) of Section 11 of the Act thereby indicate the difference between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the extent of powers of Civil Court and clearly set out. It was held that the aspect that the party against whom award is to be made, due opportunity to defend has to be given is a matter of procedure and not that of power in the sense in which the language is adopted in Section 11. When matters are referred to the Tribunal or Court, they have to be decided objectively and the Tribunals/Courts have to exercise their discretion in a judicial manner without arbitrariness by following the principles of law and rules of natural justice. The power to proceed ex-parte is available under Rule 22 of the Central Rules which also includes the power to inquire whether or not there was sufficient cause for the absence of a party at the hearing, and if there is sufficient cause shown which prevented a party from appearing, then if the party is visited with an award without a notice which is a nullity, therefore, the Tribunal will have no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex-parte award. It was held that if that is the position in taw, the observations of the High Court and the Tribunal that the Labour Court had become functus officio after making the award, though ex-pane, were erroneous.
In view of the aforesaid judgment of the Supreme Court, it is clear that even after passing an ex-parte award the Labour Court had the jurisdiction to set aside the same in case sufficient cause was shown by the party against whom the award was passed for his absence before the Court. The order of the Labour Court, therefore, holding that the Court had become functus officio after the award had become enforceable is clearly erroneous and cannot be sustained. I, accordingly, make the rule absolute, quash the impugned order dated 23rd February, 2000 and allow the writ petition. The matter is remanded to the Labour Court with a direction to decide the application of the Petitioner for setting aside the ex-parte award on its merits. In the facts of the case I leave the parties to bear their own cost. The parties are directed to appear before the Labour Court on 7.4.2003.
It is to be borne in mind that Rule 22 of the Industrial Disputes (Central) Rules, 1958 enjoins that
If without sufficient cause being shown, any party to proceedings before a Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed as if the party had duly attended or had been represented.
Significantly, Rule 48 of Tamil Nadu Industrial Dispute Rules, 1958 speaks of ex parte proceedings and the same is as follows:
(1) If, without showing sufficient cause any party to proceedings before a Board, Court, Labour Court, Tribunal or Arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal or the Arbitrator may proceed as if the party had duly attended or had been represented.
(2). The Board, Court, Labour Court, or Tribunal or an Arbitrator may, for sufficient cause, set aside, after notice to the opposite party, the ex parte decision either wholly or in part, on an application made within 15 days of the ex parte decision:
Provided that an application may be admitted after the said period of 15 days, if the applicant satisfies the Board, Court, Labour Court or Tribunal or Arbitrator, as the case may be, that he had sufficient cause for not preferring the application within that period.
The Ex parte award will be set aside even after thirty days of its publication since, there is no bar for High Court in not entertaining an application for setting aside even after thirty days of its publication which is applicable to the Labour Court/Tribunal.
At this stage, a perusal of the notes paper in I.D. No. 2/2006 on the file of the second Respondent/Labour Court, Tirunelveli indicates that on 24/1/2007, fresh notice to the Respondent (Writ Petitioner/Management) through "Registered Post with Acknowledgment Due" has been ordered, returnable by 28/2/2007. Again on 28/2/2007, fresh notice through Registered Post to the Respondent has been ordered and the matter has been posted on 2/4/2007. Again on 2/4/2007, notice to the Respondent has been ordered and the matter has been posted on 10/5/2007. On 10/5/2007, the matter has been re-posted on 27/6/2007 based on the reason that ''P.O is in training''. On 27/6/2007, fresh notice to Respondent through "Registered Post with Acknowledgment Due" has been ordered and the matter has been re-posted on 20/7/2007. Again, on 20/7/2007, fresh notice to the Respondent through "Registered Post with Acknowledgment Due" has been ordered, returnable by 23/8/2007. Subsequently, from 23/8/2007, the matter has been adjourned to 21/9/2007 and 18/10/2007 respectively. On 18/10/2007, in the notice paper, it is endorsed that "the Petitioner''s notice served" (first Respondent) and the Respondent''s notice (writ Petitioner) returned as "left". Again, on 18/10/2007, fresh notice to Respondent through
Registered Post with Acknowledgment Due" to the correct address has been ordered returnable by 22/11/2007. On 22/11/2007, it is endorsed as "Respondent served and acknowledgment card received". The Respondent called absent and the matter has been posted for Ex parte evidence on 29/11/2007. On 29/11/2007, when the matter has been posted for taking of ex parte evidence, W.W.1 has been examined in chief ex parte. Exs.W.1 and W.2 are marked and the matter has been posted for orders on 30/11/2007. On 30/11/2007, it is stated that the order is not ready and the matter has been adjourned to 13/12/2007 for orders. Again, from 13/12/2007, the matter has been adjourned to orders on 14/12/2007. On 14/12/2007, the matter has been posted on 17/12/2007 for orders and finally, on 17/12/2007, the award has been passed.
A perusal of the summons as per Section 36 of the Act, sent to the writ Petitioner (Respondent in I.D. No. 2 of 2006) shows that the date of hearing of I.D. No. 2 of 2006 is slated on 6/2/2006 at 10.00 a.m., and the writ Petitioner/Management address is mentioned as
8/209 Balaji Illam, Ramalayam, V.K.N. Near, Courtallam & Post Tenkasi Taluk.
The said notice has been despatched in D. No. 9,10/06 dated 9/1/2006. Even, the Registered Post with Acknowledgment Due sent in D. No. 732/07 dated 27/9/2007 by the second Respondent/Labour Court, addressed to the writ Petitioner (Respondent in I.D. No. 2 of 2006) shows that the address of the writ Petitioner is mentioned as
No. 8/209 Balaji Illam Ramalayam, V.K.N. Nagar Kuttralam & Post Tenkasi Taluk
has been returned to the Sender viz., the second Respondent as "addressee left". Therefore, it is quite evident that the second Respondent/Labour Court has sent the "Registered Post with Acknowledgment Due" to the writ Petitioner (Respondent in I.D. No. 2 of 2006) only to the address at Courtrallam & Post, Tenkasi Taluk.
A perusal of an acknowledgment card sent by the second Respondent/Presiding Officer, Labour Court, Tirunelveli addressed to the writ Petitioner (Respondent) shows that the writ Petitioner''s address is mentioned as Bombay and the same has been received by someone on behalf of the writ Petitioner on 6/11/2007.
Indeed, the Registered Post with Acknowledgment Due to the writ Petitioner/Management has been despatched by the second Respondent Office in D. No. 868/07 dated 1/11/2007 specifying the hearing date on 22/11/2007. Exactly, 15 days before hearing of I.D. No. 2 of 2006 on 22/11/2007, the writ Petitioner has received the Registered Post with Acknowledgment Due i.e., on 6/11/2007. At least, after the receipt of the notice of hearing, the writ Petitioner/Management should have taken diligent steps to appear before the second Respondent/Labour Court for the hearing on 22/11/2007. But the perusal of the notice paper in I.D. No. 2 of 2006 of the second Respondent/Labour Court, Tirunelveli shows that the Acknowledgment Card has been received from the Respondent (writ Petitioner) and it has been called absent and set ex parte. Therefore, it is quite clear that notice of hearing of I.D. No. 2 of 2006 dated 22/11/2007 has been duly served on the writ Petitioner (Respondent/Management) on 6/11/2007. As such, it is not open to the writ Petitioner/Management to contend that no notice has been served upon it at Mumbai address. After having received the notice and also the second Respondent/Labour Court has received the acknowledgment from the writ Petitioner/Management to that effect, then, non-appearance of the writ Petitioner (Respondent) before the second Respondent/Labour Court on 22/11/2007 is to be construed only as "without sufficient cause", in the considered opinion of this Court. Therefore, the contra contention put forward on the side of the Petitioner/Management is not accepted by this Court and the same is rejected.
In the present case, even though the Petitioner/Management (Respondent in I.D. No. 2 of 2006) has been called absent and set ex parte, the ex parte evidence of the First Respondent/Petitioner has not been recorded/taken on 22/11/2007 by the second Respondent/Labour Court. However, the matter has been posted to 29/11/2007 for taking ex parte evidence. Only on 29/11/2007, the first Respondent (Petitioner in I.D. No. 2 of 2006) has been examined as W.W.1 in chief and the matter has been posted for orders to 30/11/2007. Surprisingly, the ex parte award has not been passed from 30/11/2007 till 14/12/2007. Only, on 17/12/2007, the ex parte award has been passed.
On going through the Ex parte award dated 17/12/2007 passed by the second Respondent/Labour Court, Tirunelveli, this Court is of the considered view that the same is bereft of quantitative and qualitative details. In fact, there is no discussion about the merits and demerits of the claim and rival claim made by the parties. Even in Ex parte award/decree, the Tribunal/Court of law has to apply judicial mind. But, in the instant case, the award passed by the second Respondent/Labour Court dated 17/12/2007 suffers from outline of process of reasoning. Merely, mentioning in the award for what relief, I.D. No. 2 of 2006 has been filed before the second Respondent and further stating that
It is contended by the Petitioner that he was appointed as Tipper Driver in the month of May 1998 and he was paid salary of Rs. 3,000/- per month and other monetary benefits and Respondent without any valid reason dismissing him from service on 9/5/2000.
will not suffice, so as to enable the second Respondent to pass an ex parte award.
Proceeding further, it is relevant to make a significant mention in the award that the Petitioner was examined as W.W.1 on 22/11/2007 besides proof affidavit have been filed and Exs.W.1 and W.2 have been marked and that the Respondent (writ Petitioner) was called absent and set ex parte on 22/11/2007 etc., and therefore, the Petitioner is entitled to the relief as prayed for and accordingly, passing an award directing the Reinstatement of the First Respondent is not a palatable and prudent one in the eye of law. An unreasoned award may be a just one from the point of view of the person, who has passed the same. But, it may not be so to an aggrieved person, who may have a genuine cause for concern that by passing of an unreasoned and non-speaking order, something legal wrong has been done to him/it.
To put it succinctly, the ex parte Award dated 17/12/2007 passed by the second Respondent/Labour Court is an unreasoned and non-speaking one, which cannot stand a scrutiny in the eye of law. Also, the second Respondent/Labour Court has not framed a point for determination and also that it has not assigned qualitative and quantitative reasons for the decision arrived at by it by discussing the relative merits and demerits of the parties based on the pleadings projected in the main Industrial Dispute. Therefore, this Court, interferes with the said award passed by the second Respondent/Labour Court in I.D. No. 2 of 2006 dated 17/12/2007 and set aside the same, by exercising its writ jurisdiction to prevent aberration of justice. Consequently, the writ petition succeeds.
In the result, the writ petition is allowed, leaving the parties to bear their own costs. The Ex parte Award passed by the second Respondent/Labour Court is set aside by this Court for the reasons assigned in this writ petition.
M.P.(MD) No. 1 of 2011: The writ Petitioner/Management filed M.P. No. 2 of 2008 praying for the relief of granting stay in regard to the operation of the ex parte award passed by the second Respondent in I.D. No. 2 of 2006 dated 17/12/2007. However, in the said M.P., only notice and private notice returnable by two weeks has been ordered on 21/10/2008.
However, the first Respondent/Petitioner (workmen) filed M.P. No. 1 of 2011, praying for issuance of a direction of this Court to the writ Petitioner/Management to pay back wages to him and to continue to pay the wages as per Section 17B of the Industrial Disputes Act, 1947. Admittedly, Section 17B of the Industrial Disputes Act, will not come into operative play when this Court has not granted stay in M.P. No. 2 of 2008 (stay petition) because, in that contingency, the Employer will be bound to reinstate the workmen forthwith. In the absence of an order of stay of operation of the award in I.D. No. 2 of 2006, this Court will expose the writ Petitioner to the Penal consequences of Section 29 of the Industrial Disputes Act, which deals with penalty for breach of settlement or award apart from the recovery proceedings as per Section 33 of the Industrial Disputes Act, 1947 which refers to "the conditions of service, etc., to remain unchanged under circumstances during pendency of proceedings."
The object of 17B of the Act is that during the pendency of proceedings in higher forum, a workmen should not have been gainfully employed in any other Establishment from which he receives adequate remuneration, if an affidavit has been filed by the workmen to the effect that he has not been employed in any establishment during the pendency of such proceedings, then, he has despatched his burden.
Ordinarily, the payment of 17B wages under the Industrial Disputes Act is akin to the subsistence allowance. It is not a recoverable or refundable one. The object of 17B is to provide relief to a workman aiming at relieving the hardship to him that will be caused on account of delay in implementation of the award, as a result of the pendency of the proceedings before the second Respondent. The ingredients of Section 17B of the Industrial Disputes Act will come into operation only when proceedings are initiated before the High Court or the Honourable Supreme Court against the award directing reinstatement and it will not apply if the award of reinstatement is not challenged. As per Section 17B of the Act, there is no obligation on the part of the Employer to pay without the orders of this Court, the workmen has to claim and satisfy the Court before being entitled to an order for payment as per Section 17B of the Industrial Disputes Act. Section 17B is mandatory in character and it gives a mandate to the Court to award full wages, if the conditions enumerated in Section 17B are fully satisfied, in the considered opinion of this Court. However, the delay in making application will not affect the powers of the Court as per decision in Rajasthan State Road Transport Corporation Vs. Labour Court and Another, .
The three ingredients mentioned in Section 17B of the Act are as follows:
a. The Labour Court, directed reinstatement of workman.
b. The Employer filed proceedings against the award before the Honourable High Court or the Honourable Supreme Court.
c. The workman has not been employed in any Establishment during such period.
Then, the Employer is liable to pay the last drawn wages to the workmen, in the considered opinion of this Court. The liability as per Section 17B of the Industrial Disputes Act continues during the entire period of the pendency of proceedings in higher course even if the workmen as in the meanwhile crossed his age of super annuation and would have retired, had he not been dismissed or discharged from service as opined by this Court.
Section 17B of the Industrial Disputes Act is a statutory exception and creates a liability in favour of the workmen and against the Employer. The right as per Section 17B of the Industrial Disputes Act is an independent right to a workman during the pendency of proceedings before the Honourable High Court or the Honourable Supreme Court.
This Court worth recalls a Division Bench decision in Elpro International Ltd. Vs. K.B. Joshi and others, , wherein it is laid down that
Section 17B of the Act does not in any way impinge upon the extraordinary powers conferred on the High Court under Articles 136 and 226 of the Constitution, much less restricting the said powers.
In the aforesaid decision, at page 215, it has among other things observed that
Section nowhere lays down that in extreme cases where it is demonstrated that the award passed is either without jurisdiction or is otherwise a nullity, or grossly erroneous or perverse, the High Court or the Supreme Court is debarred from exercising its power under Article 226 and 136 of the Constitution.
This Court also aptly points out that in Godrej and Boyce Manufacturing Co. Ltd., Madras Vs. Principal Labour Court, Madras and Another, wherein at page 209, it is held that
...Courts cannot afford to be manipulated and allow the management/employer to use the interim order as a weapon to avoid such a statutory liability. Some error of fact or even some error of law alone will not thus be enough to issue any interim order. If, however, the error is such that it goes to the root of the jurisdiction of the Tribunal and the Court has got sufficient materials to ignore the effect of Section 17B of the Act the Court may decline to order payment of the wages pendente lite...
Be that as it may, in view of the fact that the first Respondent/Petitioner has taken a stand that he has been removed from service illegally from 9/5/2000, but the same has been repudiated by the Petitioner/Management saying that the services have been terminated on 11/5/2000 though the first Respondent has joined on 1/10/1999 and earlier, he was on probation and that the project was in operation only for a contractual period of four years etc., and also because of the fact, this Court has set aside the ex parte award dated 17/12/2007 passed in I.D. No. 2 of 2006 by the second Respondent as referred to earlier paragraphs of this Court, this Court is of the considered view that prima facie, there are sufficient materials to decline the relief of payment of wages as per Section 17B pendentelite by exercising its judicial discretion and ignore the effect of Section 17B of the Act based on the over all facts and circumstances of the case which float on the surface. Consequently, Miscellaneous Petition (MD) No. 1 of 2011 is closed.
M.P.(MD) No. 2 of 2008: This Miscellaneous Petition is closed.